Appeal from a judgment of the Superior Court of San Joaquin County, and from an order denying a new trial.

The following is a copy of the body of the agreement referred to in the opinion of the court: —

“ We, the undersigned, hereby agree with each other, and the one with the other, that a corporation shall be formed by us under the name of ‘ San Joaquin Land and Water Company/ for the purpose of procuring water rights on one or more of the rivers or streams running through the counties of Calaveras, Tuolumne, Stanislaus, and San Joaquin, in this state; purchase, erect, and construct dams, reservoirs, canals, aqueducts, and other water-ways in and by which the water so procured from said rivers, or any of the same, can be utilized for general purposes; to secure and impound springs, streams and other waters in any of said counties, and lead the water so secured to any of such canals and water-ways to supply farms, mines, cities, towns, and villages with any of the said waters for mining, farming, drinking, irrigation, and other purposes; to negotiate for, buy, sell, let, improve, and cultivate lands and town lots in said state, lay out town lots and colony tracts, and sell and let such town lots and colony tracts; that the capital stock of said corporation shall be one million dollars, divided into ten thousand shares of one hundred dollars per share; and we hereby agree with each other, and one with the other, that we wall take the number of shares of the capital stock of said corporation which appears opposite our respective names hereunto subscribed, and will^ pay twenty per cent of the par value of said shares so subscribed by us respectively in five (5) days after the articles of said incorporation shall have been filed in the office of the county clerk of said county of San Joaquin, and will pay the same to F. M. West, at the Stockton Savings and Loan Society Bank at Stockton, California. We hereby constitute said F. M. West as the agent to collect the amount which becomes due as aforesaid. We further nominate, constitute, and appoint L. U. Shippee, J. L. Beecher, and George Gray as our agents, and the agents of the corporation so to be formed, to negotiate for the purchase of any one or more water rights, canals, reservoirs, aqueducts, or water-ways for said corporation, and draw from said West any or all moneys that may have been paid to him by us respectively, by virtue hereof, and use said money for paying for same; and any and all contracts which our said agents may make in said matter shall be binding upon said corporation, and also, upon us. Our said agents are further authorized to-employ engineers and other assistance, and have them survey routes for such canals, and examine proper locations for dams, and do such other service as may be, in their opinion, for our best interest and the interest of said corporation to accomplish the object or purpose for which the same is to be formed.

“ Dated November 19, 1887.”

Further facts are stated in the opinion of the court'.